Mothers Against Toxic Housing, a coalition of nonprofit and unincorporated associations, has filed an appeal against the California Department of Toxic Substances Control (DTSC) and HRP Campus Bay Property, LLC. The complaint was lodged in the Court of Appeal of the State of California, First Appellate District, Division Two on May 16, 2024. The plaintiffs are challenging the DTSC's approval of a Prospective Purchaser Agreement (PPA) with HRP Campus Bay Property for an 86-acre site in Richmond.
The plaintiffs argue that the DTSC's approval of the PPA violated the California Environmental Quality Act (CEQA). They claim that new information and changed circumstances regarding sea level rise and vapor intrusion were not adequately considered in the cleanup plan for the Zeneca Site. According to Mothers Against Toxic Housing, these factors could exacerbate environmental hazards rather than mitigate them as intended by the Feasibility Study & Remedial Action Plan (FS/RAP) approved in 2019.
In November 2019, DTSC approved a FS/RAP for a large portion of the site. This document detailed various remediation alternatives and ultimately selected Alternative 3a, which involves removing some toxic materials from the site and treating others in situ before covering the area with a concrete cap. The FS/RAP also included a Site Management Plan outlining steps for implementing this remediation strategy. Subsequently, DTSC adopted a negative declaration under CEQA guidelines, indicating that these remedial efforts would not have significant environmental impacts.
On July 1, 2021, DTSC approved a PPA with HRP Campus Bay Property. This agreement shields HRP from liability associated with pre-existing contamination at the Zeneca Site while committing them to complete portions of the cleanup activity previously approved under FS/RAP. Plaintiffs allege that this agreement failed to consider updated guidelines on sea level rise released by California in January 2020 and draft protocols for evaluating vapor intrusion published by CalEPA later that year.
Judge Edward Weil presided over three issues during trial: whether the PPA qualified as a "project" under CEQA; if so, whether any CEQA exemptions applied; and whether new information or changed circumstances necessitated further environmental review under Section 21166 of CEQA Guidelines. Judge Weil ruled against plaintiffs on all counts in his comprehensive 46-page statement of decision.
The plaintiffs are seeking to overturn this judgment on grounds that DTSC's procedural violations deprived them of opportunities to comment on potential significant impacts posed by increased sea levels and vapor intrusion risks. They argue that substantial evidence supports reopening environmental review based on San Mateo Gardens' test for subsequent review when new information arises post-approval.
Representing Mothers Against Toxic Housing are attorneys from several environmental advocacy groups including Richmond Shoreline Alliance and SPRAWLDEF who were also involved in prior litigation concerning this site’s development plans. Meanwhile representing defendants are legal teams from state agencies responsible for overseeing toxic substance control measures across California.
This case highlights ongoing tensions between community activists advocating stringent environmental protections versus governmental bodies tasked with balancing public health concerns alongside economic development interests within regulatory frameworks like CEQA.
Attorneys involved include those representing plaintiffs such as Richmond Shoreline Alliance’s legal team while defense counsel comprises representatives from relevant state agencies overseeing toxic substance control measures statewide including Judge Edward Weil presiding over proceedings bearing Case ID A166861 filed at Contra Costa County Superior Court MSN21-1391